Monday, February 28, 2011

Special Rapporteur Report: Treaty settlements

In July last year, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, visited New Zealand to investigate the situation of Māori.That visit was to follow up the 2005 visit of the previous Special Rapporteur, Rodolfo Stavenhagen, and primarily focused on issues relating to the Treaty of Waitangi and the associated claims and settlement processes.The Special Rapporteur last week reported on his 2010 visit.In his report, he identified the concerning disparity between Māori and other New Zealanders across a range of health and social indicators.That aspect of the report has been the subject of some comment in the media.The Special Rapporteur also makes a number of interesting comments on the Treaty settlement process.

The Special Rapporteur commends the New Zealand government for its efforts to settle historical claims based on the Treaty of Waitangi, but also notes some significant “ongoing concerns”. In general, the Special Rapporteur recorded the overarching concern expressed by many Māori that the Treaty settlement process is fundamentally flawed “because the party responsible for the breaches of the Treaty of Waitangi – the Government – is wholly responsible for determining the framework policies and procedures for redress for those breaches, resulting in a situation that is inherently imbalanced and unfair to Māori”.

Of particular concern to the Special Rapporteur was that the government determines the group with which it will negotiate, which, while creating some efficiencies in the settlement process can lead to the specific claims of smaller groups being overlooked and can cut across existing hapū and iwi leadership structures.The Special Rapporteur was very troubled by the Waitangi Tribunal’s comment in its Tamaki Makaurau Settlement Process Report that although the Treaty settlement process is supposed to improve Māori-State relationships, “what we are seeing […] is that the process of settling is damaging more relationships than it is improving”.

Other concerns relate to the settlement redress that is available.The Special Rapporteur notes that “the Government wholly defines what and how much redress is available to settle historical claims” and that “Māori have expressed concern that the value of the settlements is grossly out of proportion to the value of what has been taken from them, amounting only to an estimated three per cent of the value of their total loss”.

The Government’s focus on achieving “finality” of settlements also creates problems.Because the Crown’s concept of “finality” is based on the extinguishment of Māori rights (which, I would argue, is problematic in itself), the legislation that implements aspects of Treaty settlements prevents the Waitangi Tribunal or the courts from addressing the historical claims that are the subject of that legislation.The Special Rapporteur notes “This lack of independent review contributes to a feeling on the part of Māori of an imbalance of power in the settlement process, as well as a feeling that the settlement process is at times unfair”.

The Special Rapporteur’s overall view of the Treaty settlements process is expressed in the following passage:

The Special Rapporteur understands that there are many difficulties and complexities involved in the Government’s laudable effort to provide redress for historical grievances through negotiated Treaty settlement. Nevertheless, the aforementioned concerns have fomented an uneasiness and mistrust by Māori of the Treaty settlement process, which may have negative implications for achieving the important goals of redress and reconciliation that the process is designed to advance. The Special Rapporteur observes that increasing Māori participation in and influence over settlement policies, procedures, and outcomes could go a long way in alleviating the apparent discontent in the Treaty settlement process felt by Māori groups.

If settlements are to be durable agreements that contribute to a process of reconciliation, then it will be necessary for the government to address the concerns outlined by the Special Rapporteur and focus more attention on reaching Treaty settlements that deliver justice, rather than settlements that merely deliver short-term efficiencies.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review